High Stakes Poker

[The recent confirmation of Justice Gorsuch was a] huge loss for the of Justice Ruth Bader Ginsburg, who ignored increasing calls for her retirement during the Obama administration to avoid the prospect of the flipping of her seat from a liberal to a conservative member. That gamble — whatever calculation — could now cost a sweeping number of key cases hanging by a 5-4 margin, including much of the precedent built around Roe v. Wade, if not an outright overturning of that decision....

Now Ginsburg’s gamble on Hillary Clinton being elected could have sweeping impact on precedent that she played a major role in creating. With the elimination of the filibuster, the next nominee is hardly likely to be nuanced. Without the filibuster, Republicans have no excuse to compromise on a moderate. There is nothing standing in the way to appointing someone who is openly opposed to cases like Roe v. Wade.

It's hard to overstate how big a gamble the 2016 election was for the whole country. Indeed, it's not as if the election ended the gambling that's going on.

Returning abortion to the states would be an overturning of Roe vs Wade, though.

I suppose it could be billed as something else. But the whole foundation of the decision is that the state police power cannot be used to regulate abortion in the first two trimesters except in very, very limited ways (in particular, it cannot be used for the purpose of discouraging or lessening abortions).

Roe v. Wade contains a discussion of the consequences of a grant of power to our secular government. It's enough to stop most lawyers cold.

Roe v. Wade requires that, for an abortion to take place, the consent of the one person most affected, the mother, must be obtained. This decision has to be made on a case-by-case basis, and it is not in the hands of any government. This wholly prevents a wholesale slaughter of the innocents by the government.

I read that decision shortly after it was published in the Supreme Court Reporter. I remember people recoiling in horror and exclaiming "that could never happen here!!!!!!!"

And then we got news that China had enacted a one-child-per-family rule, which has since resulted in vast numbers of abortions, disproportionate numbers of abortions of girls, and a resulting population imbalance.

Anyone who thinks that could not happen here should go back and re-read the many articles vilifying Sarah Palin's decision to keep her baby. I submit that Roe v. Wade is also a substantial bulwark against those who would deny medical insurance to babies brought to term with previously detected defects.

Even a religiously conservative Justice might recognize that the power to make this decision is not specifically delegated to the Federal government or the States, but is reserved to the People.

"Roe v. Wade requires that, for an abortion to take place, the consent of the one person most affected, the mother...."

The whole issue turns on the accuracy of the claim that the mother is the one person most affected by an abortion.

To your main idea, though: It isn't necessary to abandon the idea that the government has no power to compel an abortion to accept that the government has power to stop one. The government has power to stop murder, in general, but not to compel it. Even after someone has been sentenced to death via due process of law, the government has no power to force me to be the one who kills them.

Valerie's point is a reasonable one in the world we live in, though. There are many people I would not trust farther than I can throw them to refrain from forcing an abortion. People—particularly in the upper classes—commonly pressure adolescent, financially-dependent daughters to abort, without mercy. I've mentioned before my recollection of signs saying "Bristol Must Abort" at Palin rallies where Bristol Palin was speaking, back in 2008. Plus the issue of people wanting to abort babies who are suspected of being disabled or gravely ill.

In principle, the finding of Roe and its successor cases ("the mystery of human life") would bar forced abortions by the same logic that it bars stopping them.

But our friends on the left are not generally known for consistency of legal principle. If "hate speech is not free speech", then it's not unimaginable that "insisting on carrying to term is not reproductive choice". (Another memory: a Madonna song about a young girl deciding to keep her baby was denounced as "an anti-choice song"—because the choice that the character in the song made was not considered permissible.)

It's the problem of the slippery slope fallacy, I guess: there's no reason that permitting the state to forbid murder means permitting the state to command murder. On the other hand, once you've permitted them to regulate murder, who knows where they'll stop?

That's exactly the argument that was fielded about marriage. Sure, the institution of marriage pre-dates the United States and the several states -- but you permitted them to regulate it, so you have to accept whatever they decide to do with it.

That's true... but that's the difference between consistent argument based on principle, and argument based on the desired outcome. The former is what we wish would happen, but the latter often prevails, and while there's no constituency to require murder, there is one to require abortions.

So it's well to be aware of the possibilities, given that people don't always argue the way we would argue.

I suppose the good news is that a decision from SCOTUS overturning Roe would itself set a new precedent. There would be room in that precedent for a clear and unambiguous standard against state-compelled abortions. (In fact, it would be good if the same decision overturned Buck v. Bell, an even more odious decision that as far as I know has not been overturned).